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2188
504 U.S. 655
119 L.Ed.2d 441
Syllabus
Respondent, a citizen and resident of Mexico, was forcibly kidnapped
from his home and flown by private plane to Texas, where he was arrested
for his participation in the kidnapping and murder of a Drug Enforcement
Administration (DEA) agent and the agent's pilot. After concluding that
DEA agents were responsible for the abduction, the District Court
dismissed the indictment on the ground that it violated the Extradition
Treaty between the United States and Mexico (Extradition Treaty or
Treaty), and ordered respondent's repatriation. The Court of Appeals
affirmed. Based on one of its prior decisions, the court found that, since
the United States had authorized the abduction and since the Mexican
government had protested the Treaty violation, jurisdiction was improper.
Held: The fact of respondent's forcible abduction does not prohibit his
trial in a United States court for violations of this country's criminal laws.
Pp. 659-670.
(a) A defendant may not be prosecuted in violation of the terms of an
extradition treaty. United States v. Rauscher, 119 U.S. 407, 7 S.Ct. 234, 30
L.Ed. 425. However, when a treaty has not been invoked, a court may
properly exercise jurisdiction even though the defendant's presence is
procured by means of a forcible abduction. Ker v. Illinois, 119 U.S. 436, 7
S.Ct. 225, 30 L.Ed. 421. Thus, if the Extradition Treaty does not prohibit
respondent's abduction, the rule of Ker applies and jurisdiction was
proper. Pp. 659-662.
(b) Neither the Treaty's language nor the history of negotiations and
The issue in this case is whether a criminal defendant, abducted to the United
States from a nation with which it has an extradition treaty, thereby acquires a
defense to the jurisdiction of this country's courts. We hold that he does not, and
that he may be tried in federal district court for violations of the criminal law of
The Court of Appeals affirmed the dismissal of the indictment and the
repatriation of respondent, relying on its decision in United States v. VerdugoUrquidez, 939 F.2d 1341 (CA9 1991), cert. pending, No. 91-670. 946 F.2d
1466 (1991). In Verdugo, the Court of Appeals held that the forcible abduction
of a Mexican national with the authorization or participation of the United
States violated the Extradition Treaty between the United States and Mexico.3
Although the Treaty does not expressly prohibit such abductions, the Court of
Appeals held that the "purpose" of the Treaty was violated by a forcible
abduction, 939 F.2d, at 1350, which, along with a formal protest by the
offended nation, would give a defendant the right to invoke the Treaty violation
to defeat jurisdiction of the district court to try him. 4 The Court of Appeals
further held that the proper remedy for such a violation would be dismissal of
the indictment and repatriation of the defendant to Mexico.
In the instant case, the Court of Appeals affirmed the district court's finding that
the United States had authorized the abduction of respondent, and that letters
Although we have never before addressed the precise issue raised in the present
case, we have previously considered proceedings in claimed violation of an
extradition treaty, and proceedings against a defendant brought before a court
by means of a forcible abduction. We addressed the former issue in United
States v. Rauscher, 119 U.S. 407, 7 S.Ct. 234, 30 L.Ed. 425 (1886); more
precisely, the issue of whether the Webster-Ashburton Treaty of 1842, 8 Stat.
572, 576, which governed extraditions between England and the United States,
prohibited the prosecution of defendant Rauscher for a crime other than the
crime for which he had been extradited. Whether this prohibition, known as the
doctrine of specialty, was an intended part of the treaty had been disputed
between the two nations for some time. Rauscher, 119 U.S., at 411, 7 S.Ct., at
236. Justice Miller delivered the opinion of the Court, which carefully
examined the terms and history of the treaty; the practice of nations in regards
to extradition treaties; the case law from the states; and the writings of
commentators, and reached the following conclusion:
"[A] person who has been brought within the jurisdiction of the court by virtue
of proceedings under an extradition treaty, can only be tried for one of the
offences described in that treaty, and for the offence with which he is charged
in the proceedings for his extradition, until a reasonable time and opportunity
have been given him, after his release or trial upon such charge, to return to the
country from whose asylum he had been forcibly taken under those
proceedings." Id., at 430, 7 S.Ct., at 246 (emphasis added).
In addition, Justice Miller's opinion noted that any doubt as to this interpretation
was put to rest by two federal statutes which imposed the doctrine of specialty
upon extradition treaties to which the United States was a party. Id., at 423, 7
S.Ct., at 242. 5 Unlike the case before us today, the defendant in Rauscher had
been brought to the United States by way of an extradition treaty; there was no
issue of a forcible abduction.
In Ker v. Illinois, 119 U.S. 436, 7 S.Ct. 225, 30 L.Ed. 421 (1886), also written
by Justice Miller and decided the same day as Rauscher, we addressed the issue
of a defendant brought before the court by way of a forcible abduction.
Frederick Ker had been tried and convicted in an Illinois court for larceny; his
presence before the court was procured by means of forcible abduction from
Peru. A messenger was sent to Lima with the proper warrant to demand Ker by
virtue of the extradition treaty between Peru and the United States. The
messenger, however, disdained reliance on the treaty processes, and instead
forcibly kidnapped Ker and brought him to the United States.6 We
distinguished Ker's case from Rauscher, on the basis that Ker was not brought
into the United States by virtue of the extradition treaty between the United
States and Peru, and rejected Ker's argument that he had a right under the
extradition treaty to be returned to this country only in accordance with its
terms. 7 We rejected Ker's due process argument more broadly, holding in line
with "the highest authorities" that "such forcible abduction is no sufficient
reason why the party should not answer when brought within the jurisdiction of
the court which has the right to try him for such an offence, and presents no
valid objection to his trial in such court." Ker, supra, at 444, 7 S.Ct., at 229.
10
In Frisbie v. Collins, 342 U.S. 519, 72 S.Ct. 509, 96 L.Ed. 541, rehearing
denied, 343 U.S. 937, 72 S.Ct. 768, 96 L.Ed. 1344 (1952), we applied the rule
in Ker to a case in which the defendant had been kidnapped in Chicago by
Michigan officers and brought to trial in Michigan. We upheld the conviction
over objections based on the due process clause and the Federal Kidnapping
Act and stated:
11
"This Court has never departed from the rule announced in [Ker] that the power
of a court to try a person for crime is not impaired by the fact that he had been
brought within the court's jurisdiction by reason of a 'forcible abduction.' No
persuasive reasons are now presented to justify overruling this line of cases.
They rest on the sound basis that due process of law is satisfied when one
present in court is convicted of crime after having been fairly apprized of the
charges against him and after a fair trial in accordance with constitutional
procedural safeguards. There is nothing in the Constitution that requires a court
to permit a guilty person rightfully convicted to escape justice because he was
brought to trial against his will." Frisbie, supra, at 522, 72 S.Ct., at 511-512
(citation and footnote omitted).8
12
The only differences between Ker and the present case are that Ker was
decided on the premise that there was no governmental involvement in the
abduction, 119 U.S., at 443, 7 S.Ct., at 229; and Peru, from which Ker was
abducted, did not object to his prosecution.9 Respondent finds these differences
to be dispositive, as did the Court of Appeals in Verdugo, 939 F.2d, at 1346,
contending that they show that respondent's prosecution, like the prosecution of
Rauscher, violates the implied terms of a valid extradition treaty. The
Government, on the other hand, argues that Rauscher stands as an "exception"
to the rule in Ker only when an extradition treaty is invoked, and the terms of
the treaty provide that its breach will limit the jurisdiction of a court. Brief for
United States 17. Therefore, our first inquiry must be whether the abduction of
respondent from Mexico violated the extradition treaty between the United
States and Mexico. If we conclude that the Treaty does not prohibit
respondent's abduction, the rule in Ker applies, and the court need not inquire as
to how respondent came before it.
13
14
15
"1. Neither Contracting Party shall be bound to deliver up its own nationals, but
the executive authority of the requested Party shall, if not prevented by the laws
of that Party, have the power to deliver them up if, in its discretion, it be
deemed proper to do so.
16
17
According to respondent, Article 9 embodies the terms of the bargain which the
United States struck: if the United States wishes to prosecute a Mexican
national, it may request that individual's extradition. Upon a request from the
United States, Mexico may either extradite the individual, or submit the case to
the proper authorities for prosecution in Mexico. In this way, respondent
reasons, each nation preserved its right to choose whether its nationals would be
tried in its own courts or by the courts of the other nation. This preservation of
rights would be frustrated if either nation were free to abduct nationals of the
other nation for the purposes of prosecution. More broadly, respondent reasons,
as did the Court of Appeals, that all the processes and restrictions on the
obligation to extradite established by the Treaty would make no sense if either
nation were free to resort to forcible kidnapping to gain the presence of an
individual for prosecution in a manner not contemplated by the Treaty.
Verdugo, supra, at 1350.
18
We do not read the Treaty in such a fashion. Article 9 does not purport to
specify the only way in which one country may gain custody of a national of
the other country for the purposes of prosecution. In the absence of an
extradition treaty, nations are under no obligation to surrender those in their
country to foreign authorities for prosecution. Rauscher, 119 U.S., at 411-412,
7 S.Ct. at 236; Factor v. Laubenheimer, 290 U.S. 276, 287, 54 S.Ct. 191, 193,
78 L.Ed. 315 (1933); cf. Valentine v. United States ex. rel. Neidecker, supra,
299 U.S., at 8-9, 57 S.Ct., at 102 (United States may not extradite a citizen in
the absence of a statute or treaty obligation). Extradition treaties exist so as to
impose mutual obligations to surrender individuals in certain defined sets of
circumstances, following established procedures. See 1 J. Moore, A Treatise on
Extradition and Interstate Rendition, 72 (1891). The Treaty thus provides a
mechanism which would not otherwise exist, requiring, under certain
circumstances, the United States and Mexico to extradite individuals to the
other country, and establishing the procedures to be followed when the Treaty
is invoked.
19
The history of negotiation and practice under the Treaty also fails to show that
abductions outside of the Treaty constitute a violation of the Treaty. As the
Solicitor General notes, the Mexican government was made aware, as early as
1906, of the Ker doctrine, and the United States' position that it applied to
forcible abductions made outside of the terms of the United States-Mexico
extradition treaty.11 Nonetheless, the current version of the Treaty, signed in
1978, does not attempt to establish a rule that would in any way curtail the
effect of Ker.12 Moreover, although language which would grant individuals
exactly the right sought by respondent had been considered and drafted as early
as 1935 by a prominent group of legal scholars sponsored by the faculty of
Harvard Law School, no such clause appears in the current treaty.13
20
Thus, the language of the Treaty, in the context of its history, does not support
the proposition that the Treaty prohibits abductions outside of its terms. The
remaining question, therefore, is whether the Treaty should be interpreted so as
to include an implied term prohibiting prosecution where the defendant's
presence is obtained by means other than those established by the Treaty. See
Valentine, 299 U.S., at 17, 57 S.Ct., at 106 ("Strictly the question is not
whether there had been a uniform practical construction denying the power, but
whether the power had been so clearly recognized that the grant should be
implied").
21
Respondent contends that the Treaty must be interpreted against the backdrop
of customary international law, and that international abductions are "so clearly
prohibited in international law" that there was no reason to include such a
clause in the Treaty itself. Brief for Respondent 11. The international censure
of international abductions is further evidenced, according to respondent, by the
United Nations Charter and the Charter of the Organization of American States.
Id., at 17, 57 S.Ct., at 106. Respondent does not argue that these sources of
international law provide an independent basis for the right respondent asserts
not to be tried in the United States, but rather that they should inform the
interpretation of the Treaty terms.
22
The Court of Appeals deemed it essential, in order for the individual defendant
to assert a right under the Treaty, that the affected foreign government had
registered a protest. Verdugo, 939 F.2d, at 1357 ("in the kidnapping case there
must be a formal protest from the offended government after the kidnapping").
Respondent agrees that the right exercised by the individual is derivative of the
nation's right under the Treaty, since nations are authorized, notwithstanding
the terms of an extradition treaty, to voluntarily render an individual to the
other country on terms completely outside of those provided in the Treaty. The
formal protest, therefore, ensures that the "offended" nation actually objects to
the abduction and has not in some way voluntarily rendered the individual for
prosecution. Thus the Extradition Treaty only prohibits gaining the defendant's
presence by means other than those set forth in the Treaty when the nation
from which the defendant was abducted objects.
23
24
More fundamentally, the difficulty with the support respondent garners from
In sum, to infer from this Treaty and its terms that it prohibits all means of
gaining the presence of an individual outside of its terms goes beyond
established precedent and practice. In Rauscher, the implication of a doctrine of
specialty into the terms of the Webster-Ashburton Treaty which, by its terms,
required the presentation of evidence establishing probable cause of the crime
of extradition before extradition was required, was a small step to take. By
contrast, to imply from the terms of this Treaty that it prohibits obtaining the
presence of an individual by means outside of the procedures the Treaty
establishes requires a much larger inferential leap, with only the most general
of international law principles to support it. The general principles cited by
respondent simply fail to persuade us that we should imply in the United
States-Mexico Extradition Treaty a term prohibiting international abductions.
26
Respondent and his amici may be correct that respondent's abduction was
"shocking," Tr. of Oral Arg. 40, and that it may be in violation of general
international law principles. Mexico has protested the abduction of respondent
through diplomatic notes, App. 33-38, and the decision of whether respondent
should be returned to Mexico, as a matter outside of the Treaty, is a matter for
the Executive Branch.16 We conclude, however, that respondent's abduction
was not in violation of the Extradition Treaty between the United States and
Mexico, and therefore the rule of Ker v. Illinois is fully applicable to this case.
The fact of respondent's forcible abduction does not therefore prohibit his trial
in a court in the United States for violations of the criminal laws of the United
States.
27
The judgment of the Court of Appeals is therefore reversed, and the case is
remanded for further proceedings consistent with this opinion.
28
So ordered.
29
30
The Court correctly observes that this case raises a question of first impression.
See ante, at 659. The case is unique for several reasons. It does not involve an
ordinary abduction by a private kidnaper, or bounty hunter, as in Ker v. Illinois,
119 U.S. 436, 7 S.Ct. 225, 30 L.Ed. 421 (1886); nor does it involve the
apprehension of an American fugitive who committed a crime in one State and
sought asylum in another, as in Frisbie v. Collins, 342 U.S. 519, 72 S.Ct. 509,
96 L.Ed. 541 (1952). Rather, it involves this country's abduction of another
country's citizen; it also involves a violation of the territorial integrity of that
other country, with which this country has signed an extradition treaty.
31
32
Petitioner's claim that the Treaty is not exclusive, but permits forcible
governmental kidnaping, would transform these, and other, provisions into little
more than verbiage. For example, provisions requiring "sufficient" evidence to
grant extradition (Art. 3), withholding extradition for political or military
offenses (Art. 5), withholding extradition when the person sought has already
been tried (Art. 6), withholding extradition when the statute of limitations for
the crime has lapsed (Art. 7), and granting the requested State discretion to
refuse to extradite an individual who would face the death penalty in the
requesting country (Art. 8), would serve little purpose if the requesting country
could simply kidnap the person. As the Court of Appeals for the Ninth Circuit
recognized in a related case, "[e]ach of these provisions would be utterly
frustrated if a kidnapping were held to be a permissible course of governmental
conduct." United States v. Verdugo-Urquidez, 939 F.2d 1341, 1349 (1991). In
addition, all of these provisions "only make sense if they are understood as
requiring each treaty signatory to comply with those procedures whenever it
wishes to obtain jurisdiction over an individual who is located in another treaty
nation." Id., at 1351.
34
It is true, as the Court notes, that there is no express promise by either party to
refrain from forcible abductions in the territory of the other Nation. See ante, at
664,665-666. Relying on that omission,10 the Court, in effect, concludes that
the Treaty merely creates an optional method of obtaining jurisdiction over
alleged offenders, and that the parties silently reserved the right to resort to self
help whenever they deem force more expeditious than legal process.11 If the
United States, for example, thought it more expedient to torture or simply to
execute a person rather than to attempt extradition, these options would be
equally available because they, too, were not explicitly prohibited by the
Treaty.12 That, however, is a highly improbable interpretation of a consensual
agreement,13 which on its face appears to have been intended to set forth
comprehensive and exclusive rules concerning the subject of extradition.14 In
my opinion, "the manifest scope and object of the treaty itself," Rauscher, 119
U.S., at 422, 7 S.Ct., at 242, plainly imply a mutual undertaking to respect the
territorial integrity of the other contracting party. That opinion is confirmed by
a consideration of the "legal context" in which the Treaty was negotiated. 15
Cannon v. University of Chicago, 441 U.S. 677, 699, 99 S.Ct. 1946, 1958, 60
L.Ed.2d 560 (1979).
II
35
In Rauscher, the Court construed an extradition treaty that was far less
comprehensive than the 1978 Treaty with Mexico. The 1842 Treaty with Great
Britain determined the boundary between the United States and Canada,
provided for the suppression of the African slave trade, and also contained one
paragraph authorizing the extradition of fugitives "in certain cases." 8 Stat. 576.
In Article X, each Nation agreed to "deliver up to justice all persons" properly
charged with any one of seven specific crimes, including murder. 119 U.S., at
421, 7 S.Ct., at 241. 16 After Rauscher had been extradited for murder, he was
charged with the lesser offense of inflicting cruel and unusual punishment on a
member of the crew of a vessel on the high seas. Although the treaty did not
purport to place any limit on the jurisdiction of the demanding State after
acquiring custody of the fugitive, this Court held that he could not be tried for
any offense other than murder.17 Thus, the treaty constituted the exclusive
means by which the United States could obtain jurisdiction over a defendant
within the territorial jurisdiction of Great Britain.
36
The Court noted that the Treaty included several specific provisions, such as
the crimes for which one could be extradited, the process by which the
extradition was to be carried out, and even the evidence that was to be
produced, and concluded that "the fair purpose of the treaty is, that the person
shall be delivered up to be tried for that offence and for no other." Id., at 423, 7
S.Ct., at 242. The Court reasoned that it did not make sense for the Treaty to
provide such specifics only to have the person "pas[s] into the hands of the
country which charges him with the offence, free from all the positive
requirements and just implications of the treaty under which the transfer of his
person takes place." Id., at 421, 7 S.Ct., at 241. To interpret the Treaty in a
contrary way would mean that a country could request extradition of a person
for one of the seven crimes covered by the Treaty, and then try the person for
another crime, such as a political crime, which was clearly not covered by the
Treaty; this result, the Court concluded, was clearly contrary to the intent of the
parties and the purpose of the Treaty.
37
38
"No such view of solemn public treaties between the great nations of the earth
can be sustained by a tribunal called upon to give judicial construction to them.
39
"The opposite view has been attempted to be maintained in this country upon
39
"The opposite view has been attempted to be maintained in this country upon
the ground that there is no express limitation in the treaty of the right of the
country in which the offence was committed to try the person for the crime
alone for which he was extradited, and that once being within the jurisdiction
of that country, no matter by what contrivance or fraud or by what pretence of
establishing a charge provided for by the extradition treaty he may have been
brought within the jurisdiction, he is, when here, liable to be tried for any
offence against the laws as though arrested here originally. This proposition of
the absence of express restriction in the treaty of the right to try him for other
offences than that for which he was extradited, is met by the manifest scope
and object of the treaty itself." Id., at 422, 7 S.Ct., at 242.
40
Thus, the Extradition Treaty, as understood in the context of cases that have
addressed similar issues, suffices to protect the defendant from prosecution
despite the absence of any express language in the Treaty itself purporting to
limit this Nation's power to prosecute a defendant over whom it had lawfully
acquired jurisdiction.18
41
42
"But, even supposing, for a moment, that our laws had required an entry of the
Apollon, in her transit, does it follow, that the power to arrest her was meant to
be given, after she had passed into the exclusive territory of a foreign nation?
We think not. It would be monstrous to suppose that our revenue officers were
authorized to enter into foreign ports and territories, for the purpose of seizing
vessels which had offended against our laws. It cannot be presumed that
Congress would voluntarily justify such a clear violation of the laws of
nations." The Apollon, 9 Wheat. 362, 370-371, 6 L.Ed. 111 (1824) (emphasis
added). 22
43
The law of Nations, as understood by Justice Story in 1824, has not changed.
Thus, a leading treatise explains:
44
"A State must not perform acts of sovereignty in the territory of another State.
45
.....
46
"It is . . . a breach of International Law for a State to send its agents to the
territory of another State to apprehend persons accused of having committed a
crime. Apart from other satisfaction, the first duty of the offending State is to
hand over the person in question to the State in whose territory he was
apprehended." 1 Oppenheim's International Law 295, and n. 1 (H. Lauterpacht
8th ed. 1955).23
47
Commenting on the precise issue raised by this case, the chief reporter for the
American Law Institute's Restatement of Foreign Relations used language
reminiscent of Justice Story's characterization of an official seizure in a foreign
jurisdiction as "monstrous:" "When done without consent of the foreign
government, abducting a person from a foreign country is a gross violation of
international law and gross disrespect for a norm high in the opinion of
mankind. It is a blatant violation of the territorial integrity of another state; it
eviscerates the extradition system (established by a comprehensive network of
treaties involving virtually all states)."24
48
In the Rauscher case, the legal background that supported the decision to imply
a covenant not to prosecute for an offense different from that for which
extradition had been granted was far less clear than the rule against invading
the territorial integrity of a treaty partner that supports Mexico's position in this
case. 25 If Rauscher was correctly decidedand I am convinced that it wasits
rationale clearly dictates a comparable result in this case.26
III
49
50
either a person or property that has been wrongfully seized by a private citizen,
or even by a state law enforcement agent, on the one hand, and the attempted
exercise of jurisdiction predicated on a seizure by federal officers acting beyond
the authority conferred by treaty, on the other hand, is explained by Justice
Brandeis in his opinion for the Court in Cook v. United States, 288 U.S. 102, 53
S.Ct. 305, 77 L.Ed. 641 (1933). That case involved a construction of a
prohibition era treaty with Great Britain that authorized American agents to
board certain British vessels to ascertain whether they were engaged in
importing alcoholic beverages. A British vessel was boarded 111/2 miles off
the coast of Massachusetts, found to be carrying unmanifested alcoholic
beverages, and taken into port. The Collector of Customs assessed a penalty
which he attempted to collect by means of libels against both the cargo and the
seized vessel.
51
The Court held that the seizure was not authorized by the treaty because it
occurred more than 10 miles off shore.28 The Government argued that the
illegality of the seizure was immaterial because, as in Ker, the Court's
jurisdiction was supported by possession even if the seizure was wrongful.
Justice Brandeis acknowledged that the argument would succeed if the seizure
had been made by a private party without authority to act for the Government,
but that a different rule prevails when the Government itself lacks the power to
seize. Relying on Rauscher, and distinguishing Ker, he explained:
52
"Fourth. As the Mazel Tov was seized without warrant of law, the libels were
properly dismissed. The Government contends that the alleged illegality of the
seizure is immaterial. It argues that the facts proved show a violation of our law
for which the penalty of forfeiture is prescribed; that the United States may, by
filing a libel for forfeiture, ratify what otherwise would have been an illegal
seizure; that the seized vessel having been brought into the Port of Providence,
the federal court for Rhode Island acquired jurisdiction; and that, moreover, the
claimant by answering to the merits waived any right to object to enforcement
of the penalties. The argument rests upon misconceptions."
53
"It is true that where the United States, having possession of property, files a
libel to enforce a forfeiture resulting from a violation of its laws, the fact that
the possession was acquired by a wrongful act is immaterial. Dodge v. United
States, 272 U.S. 530, 532 [47 S.Ct. 191, 191, 71 L.Ed. 392 (1926) ]. Compare
Ker v. Illinois, 119 U.S. 436, 444 [7 S.Ct. 225, 229, 30 L.Ed. 421 (1886) ]. The
doctrine rests primarily upon the common-law rules that any person may, at his
peril, seize property which has become forfeited to, or forfeitable by, the
Government; and that proceedings by the Government to enforce a forfeiture
ratify a seizure made by one without authority, since ratification is equivalent
The same reasoning was employed by Justice Miller to explain why the holding
in Rauscher did not apply to the Ker case. The arresting officer in Ker did not
pretend to be acting in any official capacity when he kidnaped Ker. As Justice
Miller noted, "the facts show that it was a clear case of kidnapping within the
dominions of Peru, without any pretence of authority under the treaty or from
the government of the United States." Ker v. Illinois, 119 U.S., at 443, 7 S.Ct.,
at 229 (emphasis added).29 The exact opposite is true in this case, as it was in
Cook.30
55
IV
56
As the Court observes at the outset of its opinion, there is reason to believe that
respondent participated in an especially brutal murder of an American law
enforcement agent. That fact, if true, may explain the Executive's intense
interest in punishing respondent in our courts.32 Such an explanation, however,
provides no justification for disregarding the Rule of Law that this Court has a
duty to uphold.33 That the Executive may wish to reinterpret 34 the Treaty to
allow for an action that the Treaty in no way authorizes should not influence
this Court's interpretation.35 Indeed, the desire for revenge exerts "a kind of
hydraulic pressure . . . before which even well settled principles of law will
bend," Northern Securities Co. v. United States, 193 U.S. 197, 401, 24 S.Ct.
436, 468, 48 L.Ed. 679 (1904) (Holmes, J., dissenting), but it is precisely at
such moments that we should remember and be guided by our duty "to render
judgment evenly and dispassionately according to law, as each is given
understanding to ascertain and apply it." United States v. Mine Workers, 330
U.S. 258, 342, 67 S.Ct. 677, 720, 91 L.Ed. 884 (1947) (Rutledge, J.,
dissenting). The way that we perform that duty in a case of this kind sets an
example that other tribunals in other countries are sure to emulate.
57
58
"He that would make his own liberty secure must guard even his enemy from
oppression; for if he violates this duty he establishes a precedent that will reach
to himself."39
59
I respectfully dissent.
Rene Martin Verdugo-Urquidez was also indicted for the murder of agent
Camarena. In an earlier decision, we held that the Fourth Amendment did not
apply to a search by United States agents of Verdugo-Urquidez' home in
Mexico. United States v. Verdugo-Urquidez, 494 U.S. 259, 110 S.Ct. 1056, 108
L.Ed.2d 222 (1990).
Justice Gray, concurring, would have rested the decision on the basis of these
acts of Congress alone. Rauscher, 119 U.S., at 433, 7 S.Ct., at 247. Chief
Justice Waite dissented, concluding that the treaty did not forbid trial on a
charge other than that on which extradition was granted, and that the acts of
Congress did not change the "effect of the treaty." Id., at 436, 7 S.Ct., at 249.
Although the opinion does not explain why the messenger failed to present the
warrant to the proper authorities, commentators have suggested that the seizure
of Ker in the aftermath of a revolution in Peru provided the messenger with no
"proper authorities" to whom the warrant could be presented. See Kester, Some
Myths of United States Extradition Law, 76 Geo.L.J. 1441, 1451 (1988).
In the words of Justice Miller, the "treaty was not called into operation, was not
relied upon, was not made the pretext of arrest, and the facts show that it was a
clear case of kidnapping within the dominions of Peru, without any pretence of
authority under the treaty or from the government of the United States." Ker v.
Illinois, 119 U.S. 436, 443, 7 S.Ct. 225, 229, 30 L.Ed. 421 (1886).
Two cases decided during the Prohibition Era in this country have dealt with
seizures claimed to have been in violation of a treaty entered into between the
United States and Great Britain to assist the United States in off-shore
enforcement of its prohibition laws, and to allow British passenger ships to
carry liquor while in the waters of the United States. 43 Stat. 1761 (1924). The
history of the negotiations leading to the treaty is set forth in Cook v. United
States, 288 U.S. 102, 111-118, 53 S.Ct. 305, 308-311, 77 L.Ed. 641 (1933). In
that case we held that the treaty provision for seizure of British vessels
operating beyond the three-mile limit was intended to be exclusive, and that
therefore liquor seized from a British vessel in violation of the treaty could not
form the basis of a conviction.
In Ford v. United States, 273 U.S. 593, 47 S.Ct. 531, 71 L.Ed. 793 (1927), the
argument as to personal jurisdiction was deemed to have been waived.
8
We have applied Ker to numerous cases where the presence of the defendant
was obtained by an interstate abduction. See, e.g., Mahon v. Justice, 127 U.S.
700, 8 S.Ct. 1204, 32 L.Ed. 283 (1888); Cook v. Hart, 146 U.S. 183, 13 S.Ct.
40, 36 L.Ed. 934 (1892); Pettibone v. Nichols, 203 U.S. 192, 215-216, 27 S.Ct.
111, 119, 51 L.Ed. 148 (1906).
Ker also was not a national of Peru, whereas respondent is a national of the
country from which he was abducted. Respondent finds this difference to be
immaterial. Tr. of Oral Arg. 26.
10
11
In correspondence between the United States and Mexico growing out of the
1905 Martinez incident, in which a Mexican national was abducted from
Mexico and brought to the United States for trial, the Mexican charge wrote to
the Secretary of State protesting that as Martinez' arrest was made outside of
the procedures established in the extradition treaty, "the action pending against
the man can not rest [on] any legal foundation." Letter of Balbino Davalos to
Secretary of State reprinted in Papers Relating to the Foreign Relations of the
United States, H.R.Doc. No. 1, 59th Cong., 2d Sess., pt. 2, p. 1121 (1906). The
Secretary of State responded that the exact issue raised by the Martinez
incident had been decided by Ker, and that the remedy open to the Mexican
government, namely a request to the United States for extradition of Martinez'
abductor had been granted by the United States. Letter of Robert Bacon to
Mexican Charge, reprinted in Papers Relating to the Foreign Relations of the
United States, H.R.Doc. No. 1, 59th Cong., 2d Sess., pt. 2, at 1121-1122
(1906).
Respondent and the Court of Appeals stress a statement made in 1881 by
Secretary of State James Blaine to the governor of Texas to the effect that the
extradition treaty in its form at that time did not authorize unconsented to
abductions from Mexico. Verdugo, 939 F.2d, at 1354; Brief for Respondent 14.
This misses the mark, however, for the Government's argument is not that the
Treaty authorizes the abduction of respondent; but that the Treaty does not
prohibit the abduction.
12
The parties did expressly include the doctrine of specialty in Article 17 of the
Treaty, notwithstanding the judicial recognition of it in Rauscher. 31 U.S.T., at
5071-5072.
13
14
15
In the same category are the examples cited by respondent in which, after a
forcible international abduction, the offended nation protested the abduction,
and the abducting nation then returned the individual to the protesting nation.
Brief for Respondent 18, citing, inter alia, 1 Bassiouni, International
Extradition: United States Law and Practice, 5.4, pp. 235-237 (2d rev. ed.
1987). These may show the practice of nations under customary international
law, but they are of little aid in construing the terms of an extradition treaty, or
the authority of a court to later try an individual who has been so abducted.
More to the point for our purposes are cases such as The Ship Richmond, 9
Cranch 102, 3 L.Ed. 670 (1815), and The Merino, 9 Wheat. 391, 6 L.Ed. 118
(1824), both of which hold that a seizure of a vessel in violation of international
law does not affect the jurisdiction of a United States court to adjudicate rights
in connection with the vessel. These cases are discussed, and distinguished, in
Cook v. United States, 288 U.S., at 122, 53 S.Ct., at 312.
16
The Mexican government has also requested from the United States the
extradition of two individuals it suspects of having abducted respondent in
Mexico, on charges of kidnapping. App. 39-66.
The advantage of the diplomatic approach to the resolution of difficulties
between two sovereign nations, as opposed to unilateral action by the courts of
one nation, is illustrated by the history of the negotiations leading to the treaty
discussed in Cook v. United States, supra. The United States was interested in
being able to search British vessels which hovered beyond the 3-mile limit and
served as supply ships for motor launches which took intoxicating liquor from
them into ports for further distribution in violation of prohibition laws. The
United States initially proposed that both nations agree to searches of the
other's vessels beyond the 3-mile limit; Great Britain rejected such an approach,
since it had no prohibition laws and therefore no problem with United States
vessels hovering just beyond its territorial waters. The parties appeared to be at
loggerheads; then this Court decided Cunard Steamship Co. v. Mellon, 262
U.S. 100, 43 S.Ct. 504, 67 L.Ed. 894 (1923), holding that our prohibition laws
applied to foreign merchant vessels as well as domestic within the territorial
waters of the United States, and that therefore the carrying of intoxicating
liquors by foreign passenger ships violated those laws. A treaty was then
successfully negotiated giving the United States the right to seizure beyond the
3-mile limit (which it desired), and giving British passenger ships the right to
bring liquor into United States waters so long as the liquor supply was sealed
while in those waters (which Great Britain desired). Cook v. United States,
supra.
The abduction of respondent occurred on April 2, 1990. United States v. CaroQuintero, 745 F.Supp. 599, 603 (CD Cal.1990). Mexico responded quickly and
unequivocally. Tr. of Oral Arg. 33; Brief for Respondent 3. On April 18, 1990,
Mexico requested an official report on the role of the United States in the
abduction, and on May 16, 1990 and July 19, 1990, it sent diplomatic notes of
protest from the Embassy of Mexico to the United States Department of State.
See Brief for United Mexican States as Amicus Curiae (Mexican Amicus ) 5-6;
App. to Mexican Amicus 1a-24a. In the May 16th note, Mexico said that it
believed that the abduction was "carried out with the knowledge of persons
working for the U.S. government, in violation of the procedure established in
the extradition treaty in force between the two countries," App. to Mexican
Amicus 5a, and in the July 19th note, it requested the provisional arrest and
extradition of the law enforcement agents allegedly involved in the abduction.
Id., at 9a-15a.
Mexico has already tried a number of members involved in the conspiracy that
resulted in the murder of the DEA agent. For example, Rafael Caro-Quintero, a
co-conspirator of Alvarez-Machain in this case, has already been imprisoned in
Mexico on a 40-year sentence. See Brief for Lawyers Committee for Human
Rights as Amicus Curiae 4.
App. 72-87.
Id., at 72. In construing a treaty, the Court has the "responsibility to give the
specific words of the treaty a meaning consistent with the shared expectations
of the contracting parties." Air France v. Saks, 470 U.S. 392, 399, 105 S.Ct.
1338, 1342, 84 L.Ed.2d 289 (1985). It is difficult to see how an interpretation
that encourages unilateral action could foster cooperation and mutual assistance
the stated goals of the Treaty. See also Presidential Letter of Transmittal
attached to Senate Advice and Consent 3 (Treaty would "make a significant
contribution to international cooperation in law enforcement").
Extradition treaties prevent international conflict by providing agreed-upon
standards so that the parties may cooperate and avoid retaliatory invasions of
territorial sovereignty. According to one writer, before extradition treaties
became common, European States often granted asylum to fugitives from other
States, with the result that "a sovereign could enforce the return of fugitives
only by force of arms. . . . Extradition as an inducement to peaceful relations
and friendly cooperation between states remained of little practical significance
until after World War I." M. Bassiouni, International Extradition and World
Public Order 6 (1974). This same writer explained that such treaties further the
purpose of international law, which is "designed to protect the sovereignty and
territorial integrity of states, and [to] restrict impermissible state conduct." 1 M.
Bassiouni, International Extradition: United States Law and Practice Ch. 5, 2,
p. 194 (2d rev. ed. 1987).
The object of reducing conflict by promoting cooperation explains why
extradition treaties do not prohibit informal consensual delivery of fugitives, but
why they do prohibit state-sponsored abductions. See Restatement (Third) of
Foreign Relations (Restatement) 432, and Comments a-c (1987).
Id., at 76.
10
The Court resorts to the same method of analysis as did the dissent in United
States v. Rauscher, 119 U.S. 407, 7 S.Ct. 234, 30 L.Ed. 425 (1886). Chief
Justice Waite would only recognize an explicit provision, and in the absence of
one, he concluded that the Treaty did not require that a person be tried only for
the offense for which he had been extradited: "The treaty requires a delivery up
to justice, on demand, of those accused of certain crimes, but says nothing
about what shall be done with them after the delivery has been made. It might
have provided that they should not be tried for any other offences than those for
which they were surrendered, but it has not." Id., at 434, 7 S.Ct., at 248. That
approach was rejected by the Court in Rauscher, and should also be rejected by
the Court here.
11
To make the point more starkly, the Court has, in effect, written into Article 9 a
new provision, which says: "Notwithstanding paragraphs 1 and 2 of this Article,
either Contracting Party can, without the consent of the other, abduct nationals
from the territory of one Party to be tried in the territory of the other."
12
It is ironic that the United States has attempted to justify its unilateral action
based on the kidnaping, torture, and murder of a federal agent by authorizing
the kidnaping of respondent, for which the American law enforcement agents
who participated have now been charged by Mexico. See App. to Mexican
Amicus 5a. This goes to my earlier point, see n. 4, supra, that extradition treaties
promote harmonious relations by providing for the orderly surrender of a
person by one State to another, and without such treaties, resort to force often
followed.
13
This Court has previously described a treaty as generally "in its nature a
contract between two nations," Foster v. Neilson, 2 Pet. 253, 314, 7 L.Ed. 415
(1829); see Rauscher, 119 U.S., at 418, 7 S.Ct., at 239; it is also in this country
the law of the land. 2 Pet., at 314; 119 U.S., at 418-419, 7 S.Ct., at 240.
14
15
The United States has offered no evidence from the negotiating record,
17
The doctrine defined by the Court in Rauscherthat a person can be tried only
for the crime for which he had been extraditedhas come to be known as the
"doctrine of specialty."
18
In its opinion, the Court suggests that the result in Rauscher was dictated by the
fact that two federal statutes had imposed the doctrine of specialty upon
extradition treaties. Ante, at 660. The two cited statutes, however, do not
contain any language purporting to limit the jurisdiction of the Court; rather,
they merely provide for protection of the accused pending trial.
19
In fact, both parties noted in their respective briefs several authorities that had
held that a person could be tried for an offense other than the one for which he
had been extradited. See Brief for United States in United States v. Rauscher,
O.T. 1885, No. 1249, pp. 6-10 (citing United States v. Caldwell, 8 Blatchford
131 (SDNY 1871); United States v. Lawrence, 13 Blatchford 295 (SDNY
1876); Adriance v. Lagrave, 59 N.Y. 110 (1874)); Brief for Respondent in
United States v. Rauscher, O.T. 1885, No. 1249, pp. 8-16 (same).
20
21
When Abraham Sofaer, Legal Adviser of the State Department, was questioned
at a congressional hearing, he resisted the notion that such seizures were
acceptable: " 'Can you imagine us going into Paris and seizing some person we
regard as a terrorist . . .? [H]ow would we feel if some foreign nationlet us
take the United Kingdomcame over here and seized some terrorist suspect in
New York City, or Boston, or Philadelphia, . . . because we refused through the
normal channels of international, legal communications, to extradite that
individual?' " Bill To Authorize Prosecution of Terrorists and Others Who
Attack U.S. Government Employees and Citizens Abroad: Hearing before the
Subcommittee on Security and Terrorism of the Senate Committee on the
Judiciary, 99th Cong., 1st Sess., 63 (1985).
22
other nations, and would be resisted by none with more pertinacity than by the
American." The Apollon, 9 Wheat., at 371-373.
23
24
25
26
Just as Rauscher had standing to raise the treaty violation issue, respondent may
raise a comparable issue in this case. Certainly, if an individual who is not a
party to an agreement between the United States and another country is
permitted to assert the rights of that country in our courts, as is true in the
specialty cases, then the same rule must apply to the individual who has been a
victim of this country's breach of an extradition treaty and who wishes to assert
the rights of that country in our courts after that country has already registered
its protest.
27
"In the international legal order, treaties are concluded by states against a
background of customary international law. Norms of customary international
law specify the circumstances in which the failure of one party to fulfill its
treaty obligations will permit the other to rescind the treaty, retaliate, or take
other steps." Vazquez, Treaty-Based Rights and Remedies of Individuals, 92
Colum.L.Rev. 301, 375 (1992).
28
The treaty provided that the boarding rights could not be exercised at a greater
distance from the coast than the vessel could traverse in one hour, and the
seized vessel's speed did not exceed 10 miles an hour. Cook v. United States,
288 U.S. 102, 107, 110, 53 S.Ct. 305, 306, 308, 77 L.Ed. 641 (1933).
29
30
The Martinez incident discussed by the Court, see ante, at 9-10, n. 11, also
involved an abduction by a private party; the reference to the Ker precedent was
therefore appropriate in that case. On the other hand, the letter written by
Secretary of State Blaine to the Governor of Texas in 1881 unequivocally
disapproved of abductions by either party to an extradition treaty. In 1984,
Secretary of State Schultz expressed the same opinion about an authorized
kidnaping of a Canadian national. He remarked that, in view of the extradition
treaty between the United States and Canada, it was understandable that
Canada was "outraged" by the kidnaping and considered it to be "a violation of
the treaty and of international law, as well as an affront to its sovereignty." See
Leich, Contemporary Practice of the United States Relating to International
Law, 78 Am.J. Int'l L. 200, 208 (1984).
31
32
See, e.g., Storm Arises Over Camarena; U.S. Wants Harder Line Adopted,
Latin Am. Weekly Rep., Mar. 8, 1985, p. 10; U.S. Presses Mexico To Find
Agent, Chicago Tribune, Feb. 20, 1985, p. 10.
33
fails to observe the law scrupulously. Our Government is the potent, the
omnipresent teacher. For good or for ill, it teaches the whole people by its
example. Crime is contagious. If the Government becomes a lawbreaker, it
breeds contempt for law; it invites every man to become a law unto himself; it
invites anarchy. To declare that in the administration of the criminal law the
end justifies the meansto declare that the Government may commit crimes in
order to secure the conviction of a private criminalwould bring terrible
retribution. Against that pernicious doctrine this Court should resolutely set its
face." Olmstead v. United States, 277 U.S. 438, 485, 48 S.Ct. 564, 575, 72
L.Ed. 944 (1928) (Brandeis, J., dissenting).
34
Certainly, the Executive's view has changed over time. At one point, the Office
of Legal Counsel advised the Administration that such seizures were contrary to
international law because they compromised the territorial integrity of the other
Nation and were only to be undertaken with the consent of that Nation. 4B
Op.Off. Legal Counsel 549, 556 (1980). More recently, that opinion was
revised and the new opinion concluded that the President did have the authority
to override customary international law. Hearing before the Subcommittee on
Civil and Constitutional Rights of the House Committee on the Judiciary, 101st
Cong., 1st Sess., 4-5 (1989) (statement of William P. Barr, Assistant Attorney
General, Office of Legal Counsel, U.S. Department of Justice).
35
Cf. Perkins v. Elg, 307 U.S. 325, 59 S.Ct. 884, 83 L.Ed. 1320 (1939)
(construing treaty in accordance with historical construction and refusing to
defer to change in Executive policy); Johnson v. Browne, 205 U.S. 309, 27
S.Ct. 539, 51 L.Ed. 816 (1907) (rejecting Executive's interpretation).
36
The South African court agreed with appellant that an "abduction represents a
violation of the applicable rules of international law, that these rules are part of
[South African] law, and that this violation of the law deprives the Court . . . of
its competence to hear [appellant's] case. . . ." S.Afr.L.Rep., at 8-9.
37
As Judge Mansfield presciently observed in a case not unlike the one before us
today: "Society is the ultimate loser when, in order to convict the guilty, it uses
methods that lead to decreased respect for the law." United States v. Toscanino,
500 F.2d 267, 274 (CA2 1974).
38
2 The Complete Writings of Thomas Paine 588 (P. Foner ed. 1945).
39
Ibid.